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ELCDismissedEnvironment & Land Case 151 of 2018· [2022] KEELC 15393 (KLR)

Kogo (Suing as an agent of Geoffrey Michael Trimby and Margaret Lesley Trimby being the registered trustees of Neema School (Kenya Trust) v Mkindo

Environment and Land Court
20 December 2022
MOM.A. ODENY
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a bid to revive a struck-out land suit, confirming that review cannot be used as a second chance to re-argue a lost case.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi determined a notice of motion dated February 17, 2022 by the plaintiff, Victor Giri Kogo, suing as agent of the registered trustees of Neema School (Kenya) Trust, seeking review of the court's orders of October 14, 2021, by which the suit had been struck out following a preliminary objection on locus standi. The plaintiff, a donee of a power of attorney from the trustees, sought to regularize the suit rather than file a fresh one, arguing that failure to obtain leave before filing was a procedural defect curable under Article 159(2) of the Constitution, and that Order 9 rule 1 of the Civil Procedure Rules was not mandatory where a registered power of attorney existed. The defendant opposed, contending the application was an afterthought filed after service of a bill of costs, replicated arguments raised at the preliminary objection, and disclosed no new and important matter, nor any error apparent on the face of the record. The court framed the sole issue as whether the applicant met the review threshold under section 80 of the Civil Procedure Act and Order 45 rule 1. Applying National Bank of Kenya v Ndungu Njau and Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, the court held that review is confined to self-evident error and is not an appeal. Finding no new matter and no apparent error, the court dismissed the application with costs to the defendant.

Key legal issues

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01

Whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules

Holding

The applicant failed to demonstrate discovery of new and important matter or evidence, or any mistake or error apparent on the face of the record; the application was dismissed with costs

Reasoning

The court restated the three grounds for review and the requirement of no unreasonable delay. It found the application merely repeated arguments raised at the preliminary objection on locus standi that led to the suit being struck out on October 14, 2021. Relying on National Bank of Kenya v Ndungu Njau and Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, it held that review is not an appeal and cannot correct a decision merely because it is erroneous in law or because a different view was possible.

p. 4

Legal principles established

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  • Review is confined to error apparent on the face of the record; review proceedings are not an appeal and the court cannot reappraise evidence or revisit its interpretation of the law
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a different possible view by another judge is not a ground for review

Court orders

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  1. 1.The notice of motion dated February 17, 2022 seeking review of the orders of October 14, 2021 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure RulesOrder 9 rule 1
  • Constitution of KenyaArticle 159(2)

Cases cited (6)

  • DT Dobie & Company Kenya Limited v Joseph Mbaria Muchina & another
    [1980] eKLR

    Plaintiff cited it on Order 2 rule 15 and the propriety of striking out a suit

  • Joseph Ochieng & 2 others, Trading Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR

    Cited by plaintiff on regularisation of procedural defects

  • Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others sued as the Management Committee of Chelimo Squatters Group
    [2018] eKLR

    Cited by defendant on the threshold for review

  • Anthony Chelimo v Kenya Commercial Bank Limited
    [2020] eKLR

    Cited by defendant on the threshold for review

  • National Bank of Kenya vs Ndungu Njau
    Civil Appeal No 2111 of 1996

    Review only corrects self-evident error; a different judicial view is not a ground for review

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR

    Meaning of mistake or error apparent on the face of the record; review is not an appeal

Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kogo (Suing as an agent of Geoffrey Michael Trimby and Margaret Lesley Trimby being the registered trustees of Neema School (Kenya Trust) v Mkindo", Case Analysis (2022). Environment & Land Case 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15393/eng@2022-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.